Fok Chi Wa v. The Queen

CACC000423/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 423 OF 1974

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Coram: Pickering, J.

Date of Judgment: 16th July, 1974.

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JUDGMENT

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1. This appeal, though doughtily fought on behalf of the appellant, is without merit and must be dismissed. The plain truth is that counsel for the defence had too flimsy materials with which to build the edifice of a successful appeal.

2. The appellant was a police constable in the Royal Hong Kong Police Force when, on the 2nd of March of this year, the complainant, a taxi driver, was involved with his taxi in a minor accident involving a boy on a bicycle. At some stage after the accident the appellant arrived upon a motor-cycle. There was a conversation between the complainant and the appellant in which the former was asked to produce his Third Party Insurance Certificate to the Traffic Office for inspection. The complainant says that he went along to the Accident Enquiry Section Office at about 6 p.m. that afternoon where he saw the appellant who said to him, "Hey, this incident is very serious, most likely you will be prosecuted; if you are to be prosecuted you will be convicted seventy per cent, it would either be careless driving or dangerous driving; whichever it may be your licence would have to be endorsed." And then according to the complainant the following conversation took place: the complainant said, "Sir, is this that serious?" to which the appellant said, "Yes", and the complainant said, "I hope you will help me as much as you can" to which the appellant replied "You can either engage a lawyer or fight it off by spending three or five or seven lumps of water" to which the complainant said, "Big brother, how am I going to get that much money?" and added that he had only got several tens of dollars in his pocket and he might be able to get around $100. The appellant is then said to have replied, "So little - how would it be enough? You know the anti-corruption is going on fiercely, the top ones would have to eat as well." He then advised the complainant to think it over, adding "And when you have time, come back and see me." The complainant, upon being asked, said that by "lumps of water" he understood money, either $300, $500 or $700. The appellant, in evidence, denied that any of that conversation had taken place.

3. On the following day, the 3rd of March, after apparently discussing the matter with colleagues in a restaurant - other taxi drivers that is - the complainant telephoned the Independent Commission for Anti-Corruption and reported the incident of the previous day. Thereafter, there were various telephone calls and visits to the offices of that Commission by the complainant who, on the 6th of March, received certain instructions. He was provided with four one hundred dollar notes, the serial numbers of which were recorded but which had not been treated with any phosphorescent substance. On the 9th of March he went to the Accident Enquiry Section Office, Kowloon, at about 7.45 a.m. He could not find the appellant and waited outside for him. Around 8 o'clock the appellant came along wearing civilian clothes, saw the complainant and asked him "Are you looking for me?" On receiving an affirmative reply, he said, "You had better wait for a while; I am on sick leave tonight and I am here to report to my superior officer." He went into the office and some ten minutes later returned, asking the complainant what it was about. The complainant told him it was about the traffic accident and asked if he could help the complainant. The appellant, according to the complainant's evidence, replied, "Now this incident would need $400 to $500." There was a suggestion from the complainant that it might be less, which suggestion was rebuffed. The complainant then went on to ask if the appellant could wait since his wife's fixed deposit would be due next month. That apparently, as it emerged in cross-examination, was an invention. The complainant then went on to say that if the Appellant would not wait, the complainant would have to go to the New Territories on the next day to borrow money from friends - another invention, as it turned out in cross-examination. The complainant suggested that he should raise $400 and the appellant is said to have told him to wait for him at the stone embankment in the compound of that same police station at 8 o'clock on the next evening. The complainant expressed some surprise that the appellant should wish to receive money in such a spot with so many police inspectors and other ranks coming in and going out, and was told by the appellant that to be given money "outside" would make him more scared than was the complainant. The appointment was accordingly made and that night, the complainant contacted the Anti-Corruption Office, and on the following day was given the four one hundred dollar notes.

4. He kept the appointment but there was no sign of the appellant until about 8.55 when the appellant rode into the compound on a motor-scooter; he asked the complainant had he "fixed it", to which the complainant replied affirmatively; the appellant then went into the office, emerging about ten minutes later and inviting the complainant to come with him. The complainant accompanied the appellant who, on the way to a building across the compound, and in the precincts of a covered car park, picked up a piece of white wax paper. The complainant followed the appellant into a building and up a few stairs where the appellant stretched his left hand out and placed his right hand in front of the complainant in a gesture of stopping him; on the appellant's left hand there was the piece of white wax paper, and the appellant then asked the complainant to give him the money which the complainant placed upon the white wax paper. He was then told that he could go. He went down a few stairs into the parking area outside where he saw Mr. Woodward, a member of the Anti-Corruption Commission, to whom he spoke. As a result of what Mr. Woodward was told, he, Mr. Woodward, dashed into the building and up the stairs. He apparently knew that on the top two storeys there was barrack accommodation. He failed to find the appellant in that accommodation or indeed in the building at all; neither he nor his colleague, a Mr. Pi, who had joined him, were able to find the appellant, and they returned to the Traffic Office where they saw the appellant in a cubicle, apparently working. They were joined by the complainant who immediately identified the appellant by pointing at him and saying "He is the one." Mr. Pi asked the complainant what he meant by that and the complainant amplified by saying "He is the person who received the money", and on being asked by Mr. Pi, "What money do you say you give him?", the complainant said, "The four bank notes Mr. Woodward gave me." On being asked by Mr. Pi why he had given the $400, the complainant replied, "Because he said he could have my traffic accident settled if I gave him money." Both the complainant and the appellant were searched and although in the appellant's wallet some $115 were found, none of the four one hundred dollar notes, which had been given to the complainant by Mr. Woodward, were found upon him or upon the complainant.

5. Mr. Woodward, Mr. Pi and other members of the Commission gave corroborative evidence. In the result the appellant was charged with two charges, the first of corruptly soliciting and the second of corruptly accepting money.

6. It was the appellant's evidence that the complainant, having received notice of intended prosecution, told the appellant that he was a foki of the Fire Services Department and asked the appellant to help him. The appellant says that he replied, "Your being a foki of the Fire Services Department, it would be just the same even if you were a police officer, the thing would be processed just the same and I cannot help you" and added "Besides it is not certain that you will be prosecuted as a result of this traffic accident." The appellant, I need hardly say, denied the complainant's version of all the events described by the complainant.

7. The wife of the appellant gave corroboratory evidence of the meeting between the complainant and the appellant at the police station on the evening of the 9th of March, and I might add that the wife of the appellant is a policewoman.

8. The learned magistrate expressed himself as impressed by the demeanour and candour of the complainant and by the care and caution which he displayed in giving evidence.

9. Mr. Patrick Yu, for the appellant, raised various grounds of appeal, the first being that the learned magistrate placed excessive reliance upon the question of motive or rather lack of motive for the complainant to have made any complaint to the Anti-Corruption Commission in regard to the appellant whom, it was common ground, he had not known prior to the traffic accident on the 2nd of March. I think I need say no more on the question of motive than that it was not the primary reason for conviction by the learned magistrate and that, faced with two entirely contradictory stories, it is legitimate, where what I may loosely term a frame-up is alleged, to look at the possibility of any motive for such conduct, and if none exists, to weigh that in testing the credibility of the two opposing stories. Mr. Yu further attacked a certain reliance placed by the learned magistrate upon some of the expressions allegedly used by the appellant in the course of conversation with the complainant, notably the expression "lumps of water" and that of "the ones at the top would have to eat as well". These, as it appears to me, are no more than straws in the wind and Mr. Yu may be right when he says that the complainant, being a member of a department which is itself not altogether free from the taint of corruption, may have been familiar with these expressions. I do not think the learned magistrate relied upon these expressions to any extent and they are, as I say, no more than straws in the wind.

10. The learned magistrate also attached some significance to the picking up by the appellant of a piece of paper in the police compound on the evening of the 10th of March shortly before the money was handed over to him, and appears to have reasoned that the appellant, being a policeman, may well have been aware of the practice sometimes followed, where a trap is set in the case of a corruption enquiry, of painting or dusting bank notes with a substance which will attach to the fingers of persons subsequently touching those notes, and the magistrate seems to have thought that the purpose of picking up the paper may have been to avoid any such result. Certainly, according to the complainant, the money was, at the appellant's request, placed on his palm upon which the paper was resting, and, whilst there must necessarily be some speculation as to why the appellant did not consider it fit to take paper from his office before leaving the office, there may be various explanations for that; but the fact does remain that the complainant was asked to pay over the money in this somewhat extraordinary fashion, and the learned magistrate's suspicion in that direction may well not have been without foundation.

11. Mr. Yu relied perhaps most heavily upon the fact that the four one hundred dollar notes were never found either upon the complainant or upon the appellant, and suggests that in the relatively short time obtaining it would have been difficult for the appellant to have concealed these in a place in which he could have hoped subsequently to have recovered them, and much more simple for the complainant to have got rid of them, never having handed them over to the appellant at all. This, of course, is a speculative line of country and there was ample time in that relatively large area of this police station for the appellant to have disposed of these notes, either in a place where he hoped to recover them or, if his suspicions had been aroused, by destruction in some form or other.

12. The penultimate ground upon which Mr. Yu relied was that the learned magistrate appeared to have taken no particular notice of the evidence given by the appellant's wife regarding the conversation between the complainant and the appellant in the police station compound on the evening of the 9th March. As has been pointed out by Mr. Carolan for the Crown, the magistrate did not completely ignore that evidence. He referred to the fact that the wife had given evidence and it was clear that her evidence must have been in his mind although he did not specifically deal with that evidence.

13. The final ground of appeal was that the complainant had exceeded his instructions in at least one of his conversations with the appellant, that is the instructions he received from the Anti-Corruption Commission, and the excess is said to have consisted of the suggestion that his wife's deposit account would fall due the next month, and the further suggestion that if the appellant could not wait until next month he would have to go out on the following day to the New Territories and arrange to borrow money. For my part, I find nothing in the least surprising in this line of conversation. Some degree of appearance of bargaining would in those circumstances, it seems to me, be entirely logical. A too ready acquiescence in a demand for the first amount of money requested might well raise suspicion, and as I see it, the complainant, having reported to the Anti-Corruption Commission, being interested in seeing the apprehension of this corrupt policeman, acted perfectly logically in making some show of bargaining.

14. As I have said, the learned magistrate was very impressed by the complainant's evidence. He reserved his judgment and produced a most careful, and comprehensive document in the result. There is no reason, in my view, for interference with that judgment or the verdict and the appeal must be dismissed. There is no appeal against the sentences of twelve and fifteen months imprisonment on the respective charges which sentences were to run concurrently.

Representation:

Patrick Yu & Jimmy Kwong (N.K Tsang & Co.) for appellant

Carolan, C.C., for Crown/Respondent.